Petition for Writ of Certiorari — Burlington Northern Railroad v. Brotherhood of Maintenance of Way Employes

BIEED

92-606 ber? ws

No. 92- ees OF BR ORK

se — ee

In The

Supreme Court of the United States

October Term, 1992

«

BURLINGTON NORTHERN RAILROAD COMPANY,

Petitioner,

BROTHERHOOD OF MAINTENANCE OF

WAY EMPLOYEES, an unincorporated

association, BEN OCHOA, GENERAL CHAIRMAN, E. R.

SPEARS, GENERAL CHAIRMAN, PAUL S.

SWANSON, GENERAL CHAIRMAN, and BRUCE G.

GLOVER, GENERAL CHAIRMAN,

Respondents.

¢

On Petition For A Writ Of

Certiorari To The United States Court Of Appeals

For The Fifth Circuit

¢

PETITION FOR WRIT OF CERTIORARI

¢

THomas J. KNappP

Counsel of Record

LAWRENCE M. StTROIK

CHARLES W. SHEWMAKE

Opesa L. GoRMAN-STAPLETON

BURLINGTON NORTHERN

RAILROAD COMPANY

3800 Continental Plaza

777 Main Street

Fort Worth, Texas 76102

(817) 878-2380

Attorneys for Petitioner

October 7, 1992

COCKLE Avs BRIEF PRINTING CO, (800) 225-6964

CALL COLLBCT (402) 342-2831

i

QUESTION PRESENTED FOR REVIEW

WHERE A UNION STRIKES OVER A MINOR DISPUTE

IN VIOLATION OF THE RAILWAY LABOR ACT, 45

U.S.C. §§ 152 FIRST AND 153 FIRST (i), IS THE

EMPLOYER’S IMPLIED RIGHT OF ACTION ENFORCE-

ABLE BY MONETARY REMEDIES?

ii

PARTIES TO THE PROCEEDING BELOW

AND RULE 29.1 STATEMENT

All parties to the proceeding below are identified in

the caption of this petition.

Burlington Northern Inc., is the parent company of

petitioner, Burlington Northern Railroad Company. The

partially owned subsidiaries of petitioner Burlington

Northern Railroad Company are:

The Belt Railway Company of Chicago

Burlington Northern (Manitoba) Limited

Camas Prairie Railroad Company

Davenport, Rock Island and North Western

Railway Company

Houston Belt & Terminal Railway Company

lowa Transfer Railway Company

Kansas City Terminal Railway Company

Keokuk Union Depot Company

Longview Switching Company

M T Properties, Inc.

Northern Radio Ltd.

Paducah & Illinois Railroad Company

Portland Terminal Railroad Company

Terminal Railroad Association of St. Louis

Trailer Train Company

The Wichita Union Terminal Railway Company

ili

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ............ i

LIST OF CORPORATE SUBSIDIARIES AND AFFIL-

UME ERCROUS CN Te ckA cae Vee Vc kixe¥seheencese ii

NT PUMP RM ORME EEO sa osc sce ctcsvcnmsenesen vi

6 nds eek 50558500 Koa 64a one 2

Cie ee abies sk bids Keck euaseee ea 2

STATUTORY PROVISIONS INVOLVED............. 2

Demamemeee GP 89te CASE, . ow... cece ccc ceccescen 3

A. Course of Proceedings and Dispositions Below... 4

B. Railway Labor Act Framework................. 6

TUG hs os cbse ek SORA CS WR sed dA CdS ROS 7

iy 5 ek a a éNk 6b eee kdb ehe cance 8

REASONS FOR GRANTING THE WRIT OF CER-

BESS AS Sere ene eee ee 9

I. The Decision Below Rests on a Precedent Whose

Bases are no Longer Valid ..................5. il

II. The Decision Below Conflicts with this Court's

Decisions Finding an Implied Cause of Action

under the RLA to Enforce Sections 2 First and 3

Re lira ie gat ge ea NS ey 15

A. The Railway Labor Act Creates Implicit

Causes of Action for Enforcement of the

Act’s Various Duties and Obligations ..... 15

B. Congress has Provided Courts with Discre-

tion to Fashion Appropriate Remedies for

Violations of the Railway Labor Act....... 17

ii

iv

TABLE OF CONTENTS — Continued

Page

C. The Decision of the Court Below Limiting

the Available Judicial Remedies for Viola-

tions of the RLA is Inconsistent with the

Principles Enunciated by this Court Con-

cerning Enforcement of Statutory Rights

When the Statute does not Provide Specific

Pa v5 da hones canvassed nGcuaseassaees 21

Ill. There are Neither Policy nor Statutory Bases for

the Decision of the Court Below Which Recog-

nized a Dual Standard Under the RLA, Whereby

Unions May Obtain a Monetary Remedy From a

Carrier, but a Carrier May Not Obtain Such a

ee Be rrr rte rere rere 23

SS er ee ere rr ee eT eT errr 27

LIST OF APPENDICES

Appendix A

Opinion of the United States Court of Appeals

for Fifth Circuit, Burlington Northern Ratlroad

Company v. Brotherhood of Maintenance of Way

Employees, et al., No. 91-1440 (5th Cir. May 22,

A GAR Pepper ie 2 bey eer AEN eee la

Appendix B

Order of the United States District Court for the

Northern District of Texas, Fort Worth Division,

Burlington Northern Railroad Company v. Brother-

hood of Maintenance of Way Employees, et al., No.

4-90-463-A (N.D. Tex. March 7, 1991) ............ lla

Appendix C

Order denying rehearing, Burlington Northern

Railroad Company v. Brotherhood of Maintenance of

Way Employees, No. 91-1440 (5th Cir. July 9,

QOD 0k 5 cng ikenccig kh cpm eakkhe eek Glee eRa aa naes 13a

V

TABLE OF CONTENTS - Continued

Page

Appendix D

Excerpts from Section 2 First of the Railway

Lapor Act, 45 USC. § 2 First .... 2... .ccscasceces 15a

Appendix E

Excerpts from Section 3 First (i) of the Railway

Labor Act, 45 U.S.C. § 153 First (i) ............+. l6a

Appendix F

Memorandum Opinion in CSX Transportation,

Inc. v. N. J. Marquar, et al., No. 90-399, (E.D. Ky.

May 3, 1991), appeal pending, No. 91-5689 (6th

GOR, i viincascnnessuntecs enue ue yee 17a

vi

TABLE OF AUTHORITIES

Page

Cases

Bell v. Hood, 327 U.S. 676 (IGG) 2060s ccnsc case cane 17

Brotherhood of Railroad Trainmen v. Chicago River &

Indiana Railroad, 353 U.S. 30 (1957)....... 3, #7, 10, 19

Brotherhood of Railroad Trainmen v. Jacksonville Ter-

minal Co., 394 U.S. 369 (1969), rehearing denied,

SOR US. Te eed «kok e ceees necessities 15

Burlington Northern Railroad Company v. Brother-

hood of Maintenance of Way Employees, 961 F.2d

OB Ct Cie TO isk ks sv caaved binds wana eebeqeneas 2

CSX Transportation, Inc. v. Marguar, No. 90-399

(E.D.Ky. May 3, 1991), appeal pending, No.

91-SGGP COG GB is chs clay vee eewne eka 12

Cannon v. University of Chicago, 441 U.S. 677 (1979) .... 16

Chicago & North Western Railway v. United Trans-

portation Union, 402 U.S. 570 (1971) .......... passim

Consolidated Rail Corp. v. Railway Labor Executives’

Association, 491 U.S. 299 (1989) .......... 6, 7, 16, 26

Davis v. Passman, 442 U.S. 228 (1979)..... 16, 18, 21, 23

De Lima v. Bidwell, 182 U.S. 1 (1901)................ 20

Elgin, Joliet & E. Railway v. Burley, 325 U.S. 711

(1945), reaff'd on reargument, 327 U.S. 661 (1946) ..... 6

Franklin v. Gwinnett County Public Schools, ___ U.S.

anaes Bhd B CY. BORD CRMs ccieecaccces 9, 10, 21, 22

Johnson v. Railway Express Agency, 421 U.S. 454

CROTE). « o.nnacc nin cnbhed shaieane eee nee 14

Kendall v. United States, 37 U.S. (12 Pet.) 524 (1938) .... 20

a eo

vii

TABLE OF AUTHORITIES —- Continued

Page

Louisville & Nashville Railroad Company v. Brown,

252 F.2d 149 (5th Cir.), cert. denied, 356 U.S. 949

PR KGk wha chica Res eke 604049 skin an ae eeees passim

Machinists v. Central Airlines, 372 U.S. 682 (1963),

ee Gemien, 37S US. DEF CUBES). 05 oosiss ccnrcceies 16

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) .... 20

National Airlines v. Airline Pilots Association Inter-

national, 431 F. Supp. 53 (S.D. Fla. 1976)....... 12, 14

Pollard v. Bailey, 87 U.S. (20 Wall.) 520 (1874)........ 20

Steele v. Louisville & Nashville Railroad Company,

Ur Re We I oe oo ek paca ke aves 18

Sullivan v. Little Hunting Park, Inc., 396 U.S. 229

Bo PTT eer eee TUTE TEE T ETT CTT eR TT Tre 14

Texas & New Orleans Railroad v. Brotherhood of Rail-

way Clerks, 281 U.S. 546 (1930)............. 14, 15, 17

Virginian Railway Company v. System Federation No.

ey Oe Wi POW COPED ho cheap is ebunh ics cevnssens 18

STATUTES

Airline Deregulation Act, Pub. L. No. 95-504, 92

Stat. 1705 (1978)......... cece eee cece cece eee enees 25

Motor Carrier Act of 1980, Pub. L. No. 96-296, 94

Re OPE Sen is psa KN nade Vanakawh sen cabenss 25

Staggers Rail Act of 1980, Pub. L. No. 96-448, 94

PN, WT RUNES b wk Wd ew bk rc d0n Wate Nakacdseebawes 25

ee Ns oot a508 6 eos 8G 0Neacuee sd cchtieeswss 2

I sine een aniadiiessaceeweeilin 4

Viii

TABLE OF AUTHORITIES - Continued

Page

Bk a oer rere rrr roe Treas ere re 13

Oe es PE awe cipher iuusdouvesevegs sseaame 14

ek a | err er rer ee ee eee errs 14

OE sale S| - San ere Pane reer re 13

ee | eee eer error 13

RE oe F Merer revere rer ery epee erer re re 13

ee Mc Bs RIED os Sods sVoee eu easy hee ceewanen cues 15

OO rer re rr ree errs ay re passim

eS SOMES eG kines cen shee naee see een eee passim

a cea eee hede inn aunt as eee nae 6, 23, 24

Oe lak WhO see Naw divas pe pk acaeis sorb beknen nes 17

Oe Be SS RAs ces Ke eaee re eeerKe cares 16

49 USL... BE Wal) ~ WGIAIS) 6 vos ccicceenscs: 25

MIscELLANEOUS

Hearings on Railroad Labor Disputes Before the House

Committee on Interstate and Foreign Commerce,

H.R. 7180, 69th Cong., 1st Sess., p. 40 (January

BO BURN 6550 ue ecu nn ca eee geese unks Se CED 20

No. 92-

*

In The

Supreme Court of the United States

October Term, 1992

*

BURLINGTON NORTHERN RAILROAD COMPANY,

Petitioner,

BROTHERHOOD OF MAINTENANCE OF

WAY EMPLOYEES, an unincorporated

association, BEN OCHOA, GENERAL CHAIRMAN, E. R.

SPEARS, GENERAL CHAIRMAN, PAUL S.

SWANSON, GENERAL CHAIRMAN, and BRUCE G.

GLOVER, GENERAL CHAIRMAN,

Respondents.

*

On Petition For A Writ Of

Certiorari To The United States Court Of Appeals

For The Fifth Circuit

¢

PETITION FOR WRIT OF CERTIORARI

¢

Petitioner Burlington Northern Railroad Company

(“BN”) respectfully prays that a writ of certiorari issue to

review the judgment and opinion of the United States

Court of Appeals for the Fifth Circuit entered in the

above case on May 22, 1992.

7 s

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Fifth Circuit is reported: Burlington Northern Railroad

Company v. Brotherhood of Maintenance of Way Employees,

961 F.2d 86 (5th Cir. 1992), and the opinion is set forth in

the Appendix (“App.”) at 1a-10a. The order of the United

States District Court for the Northern District of Texas is

not reported. It is attached at App. 11la-12a.

+

JURISDICTION

The judgment and opinion sought to be reviewed

was entered by the Fifth Circuit Court of Appeals on May

22, 1992. The petitioner’s Suggestion for Rehearing En

Banc was treated by the Fifth Circuit as a petition for

rehearing and suggestion for rehearing en banc, which

was denied on July 9, 1992. This order is set forth at App.

13a-14a. This Court has jurisdiction to review the judg-

ment of the Fifth Circuit under 28 U.S.C. § 1254.

¢

STATUTORY PROVISIONS INVOLVED

a) Section 2 First of the Railway Labor Act, 45 U.S.C.

§ 152 First (App. 15a) states that:

It shall be the duty of all carriers, their officers,

agents, and employees to exert every reasonable

effort to make and maintain agreements con-

cerning rates of pay, rules, and working condi-

tions, and te settle all disputes, whether arising

out of the application of such agreements or

otherwise, in order to avoid any interruption to

commerce or to the operation of any carrier

growing out of any dispute between the carrier

and the employees thereof.

b) Section 3 First (i) of the Railway Labor Act, 45 U.S.C.

§ 153 First (i) (App. 16a), states:

The disputes between an employee or group of

employees and a carrier or carriers growing out

of grievances or out of the interpretation or

application of agreements concerning rates of

pay, rules, or working conditions, including

cases pending and unadjusted on June 21, 1934,

shall be handled in the usual manner up to and

including the chief operating officer of the car-

rier designated to handle such disputes; but,

failing to reach an adjustment in this manner,

the disputes may be referred by petition of the

parties or by either party to the appropriate

division of the Adjustment Board with a full

statement of the facts and all supporting data

bearing upon the disputes.

€

STATEMENT OF THE CASE

This case concerns the nature of relief that may be

awarded for violations of Sections 2 First and 3 First (i) of

the Railway Labor Act (“RLA” or “the Act”), 45 U.S.C.

§§ 152 First and 153 First (i). Though Congress has not

expressly provided for a cause of action for violations of

those sections of the RLA, this Court previously found an

implied right of action under Sections 2 First and 3 First

(i). Chicago & N. W. Ry. v. United Transp. Union, 402 U.S.

570 (1971) (“Chicago & North Western”); Brotherhood of R.R.

Trainmen v. Chicago River & Indiana R.R., 353 U.S. 30 (1957)

(“Chicago River”). Furthermore, this Court has stated that

Section 2 First should be “enforceable by whatever appro-

priate means.” Chicago & North Western, 402 U.S. at 578.

Notwithstanding this Court’s holdings in Chicago &

North Western and Chicago River, the court below held that

there was no cause of action for damages to enforce

violations of those two sections. 961 F.2d at 89. This case

provides the opportunity for this Court to definitively

state for the lower courts that the implied right of action

in Sections 2 First and 3 First (i) supports a claim for

relief by whatever means appropriate, including a mone-

tary remedy. This case also provides an opportunity for

this Court to address an illogical asymmetry within the

lower courts: unions may be awarded the full range of

relief, including damages, for a carrier’s violation of its

duties under the RLA, but carriers are not allowed this

full range of remedies when a union violates its duties

under the RLA. No sound policy or decision by this

Court supports such unequal enforcement of duties

under the RLA.

A. Course of Proceedings and Dispositions Below:

On June 26, 1990, at 2:30 a.m. BN obtained a tempor-

ary restraining order issued by the United States District

Court for the Northern District of Texas, Fort Worth

Division, against an imminent strike by the Brotherhood

of Maintenance of Way Employes and the named officers

(“BMWE”). The district court had jurisdiction under 28

U.S.C. § 1331 and 45 U.S.C. §§ 2 First and 3 First (i). In its

complaint, BN sought full equitable relief, including pre-

liminary and permanent injunctive relief to stop the

eT eo

strike, and monetary relief for the expenses it incurred as

a direct result of the unlawful strike. After a full evidenti-

ary hearing, the district court granted BN’s motion for a

preliminary injunction against BMWE’s strike action. The

Court found that there was a substantial likelihood that

the dispute between BN and BMWE was a minor dispute

under the RLA. No appeal was taken by BMWE.

On January 9, 1991, BN moved for summary judg-

ment requesting the court to award full equitable relief,

including a permanent injunction against the strike and

monetary relief for the expenses incurred in responding

to the unlawful strike. On February 6, 1991, BMWE filed a

motion to dismiss BN’s claim for monetary relief. On

February 14, 1991, the district court granted BN’s motion

for summary judgment with respect to the permanent

injunctive relief, but denied BN’s motion with respect to

its claim for monetary recovery. On March 7, 1991, the

court issued an order granting BMWE’s motion to dismiss

BN’s claim “for damages or other monetary relief.” App.

1la-12a. On March 21, 1991, the court amended the order-

ing paragraphs of the permanent injunction order. No

appeal of any of the orders of the district court has been

taken by BMWE.

BN appealed the court’s order dismissing its claim

for monetary relief. Because the district court found

Louisville & Nashville Railroad Company v. Brown, 252 F.2d

149 (Sth Cir.), cert. denied, 356 U.S. 949 (1958) (“Brown”),

controlling, BN filed a Suggestion for Hearing En Banc. It

was denied on October 29, 1991, by a panel of the Fifth

Circuit. A different panel held on the merits that “Brown

controlled the disposition of this case.” 961 F.2d at 89.

On July 9, 1992, the Fifth Circuit treated BN’s Sugges-

tion for Rehearing En Banc as a petition for rehearing and

suggestion for rehearing en banc and denied it. Within

ninety days from the denial of the petition for rehearing,

Petitioner has filed this petition for writ of certiorari.

B. Railway Labor Act Framework:

Congress established distinct dispute resolution

mechanisms based on the nature of the dispute between

the employees’ representatives and the carriers. The char-

acterization of the dispute determines the mechanism the

parties are to employ in resolving the dispute. There are

two types of disputes: major and minor. Consolidated Rail

Corp. v. Railway Labor Executives’ Ass'n, 491 U.S. 299, 303

(1989) (“Conrail”); Elgin, Joliet & E. Ry. v. Burley, 325 U.S.

711, 724 (1945), reaff'd on reargument, 327 U.S. 661 (1946).

The distinction between a “major” and a “minor” dispute

is crucial; it determines not only the degree to which a

federal court may become involved in a dispute, but also

the legality of strike conduct by the employees and their

unions.

Under the RLA, the parties in a major dispute seek to

create contractual rights. They are required to preserve

the status quo until they have exhausted a series of non-

binding settlement procedures. 45 U.S.C. § 156. After the

exhaustion of those procedures, the parties to the dispute

are free to use all available self-help. On the other hand,

in a minor dispute, the parties seek to enforce existing

contractual rights. The parties are governed by Sections 2

First, Sixth and Section 3 of the RLA which, after negotia-

tion, compels resolution by binding arbitration of the

|

contractual dispute. In a minor dispute, the union is

never free to resort to economic self-help measures such

as strikes. Conrail, 491 U.S. at 303; Chicago River, 353 U.S.

at 41-42.

C. Facts:

In the early morning hours of June 26, 1990, BMWE

commenced a 24-hour work stoppage and picketing at

many BN facilities over a major portion of BN’s railroad.

Though BN had met and exchanged correspondence with

officers of BMWE over the contractual justification for

contracting the clipcar, BMWE still called a strike against

BN. The clipcar was a newly developed machine to install

rail clips and insulators in the process of laying concrete

ties. 961 F.2d at 87. BN argued that it was entitled to

contract out this work under its collective bargaining

agreement with BMWE (Schedule Agreement). BMWE

argued, under the terms of a different collective bargain-

ing agreement called the P811-S Agreement, that BN

could not contract out this work. 961 F.2d at 87.

Instead of proceeding to compulsory arbitration

under Sections 2 First, Sixth and 3 First (i) of the RLA,

BMWE took a strike vote of its members. Without any

warning to BN, BMWE advised its members to walk off

their positions or not to report for duty at approximately

5:30 a.m. to 6:00 a.m. on June 26, 1990. (Rec. 266). BMWE

employed a public relations firm to assist in its effort to

publicize its work stoppage against BN. (Rec. 324, 338

[attachment A]). Shortly after the strike started, the pub-

lic relations firm issued a press release stating the strike

was a “public protest.” (Rec. 324, 338 [attachment A]). In

a letter to media and civic leaders, BMWE stated that it

had taken a “more aggressive approach” because “com-

promise was not working nor was arbitrating the

issue....” (Rec. 328). BMWE then publicized its success

to its members by claiming that normal railroad opera-

tions were seriously disrupted: “We should consider this

a victory!” (Rec. 235, 263).

Such striking and picketing by BMWE was found by

the district court to be unlawful because it involved a

minor dispute under the Railway Labor Act. The strike

activity was both preliminarily and permanently

enjoined. (Rec. 296, 872). BMWE did not appeal this find-

ing.

This unlawful strike resulted in severe disruption to

BN’s train operations and other services. Despite the

severe disruption, BN tried to operate during the strike in

an attempt to fulfill its legal obligations as a common

carrier. BN incurred direct expenses of approximately

$100,000 as a result of BMWE’s striking and picketing.

These expenses represent costs incurred for lost produc-

tivity, train and switching delays, overtime wages paid to

non-BMWE represented employees who were held over

because of the strike, and travel expenses for exempt BN

employees who had to be relocated to trouble-spots in

order to facilitate operations during the strike.

D. Decision Below:

When BN sought to redress the union’s violation of

the RLA through a claim for monetary relief, the district

court dismissed its claim and the Fifth Circuit affirmed.

eo

The court below held, on the basis of Brown, that there

was “no cause of action under the Railway Labor Act for

damages caused by an illegal strike.” 961 F.2d at 89. The

court felt bound to follow Brown because there was no

“Supreme Court decision holding that monetary relief is

available for breach of the § 152 First duty.” (footnote

omitted) 961 F.2d at 89. In its view, neither Franklin v.

Gwinnett County Public Schools, __ U.S. __, 112 S. Ct.

1028 (1992) (“Franklin”) nor Chicago & North Western con-

trolled the question as to the type of relief available to

support an implied cause of action for violations of §§ 2

First and 3 First (i) of the RLA. Thus, the panel felt

“bound to follow the holding in Brown.” 961 F.2d at 89.

4

REASONS FOR GRANTING THE

WRIT OF CERTIORARI

The question presented by this case is whether the

implied right of action in Sections 2 First and 3 First (i) of

the RLA supports a claim for monetary relief under the

decisions of this Court. The question is important to the

proper development of the appropriate remedies for vio-

lations of the RLA.

The decision below abruptly stops that development

by confusing the distinction between implied causes of

action and the respective appropriate remedies. At the

time of enactment of the RLA, the Congressional! intent

was to create legal obligations under the law, while

allowing the remedies to be developed on a case-by-case

basis. This Court has stated that there is an implied cause

of action under the RLA to address violations of Sections

10

2 First and 3 First (i), and has directed lower courts to

enforce those violations by “whatever appropriate means.”

Chicago & North Western, 402 U.S. at 578. In its recent decision

in Franklin, this Court reaffirmed the general rule that the

federal courts have the power to award any appropriate

relief in a cognizable cause of action unless Congress indi-

cates otherwise. Unless this Court confirms that this princi-

ple applies to the implied right of action recognized in

Chicago & North Western and Chicago River, the decisions of

the lower courts will continue to curtail the development of

the law of remedies under the RLA.

This issue is of great importance to the rail and

airline industries, their employees, and the labor organi-

zations representing those employees, all of which are

governed by the RLA. Limiting the carriers to injunctive

relief has not discouraged the unions from unlawfully

striking over minor disputes. Thus, the unions have been

free to bring economic havoc on the carrier and the

public, while the air and rail carriers’ only recourse is to

minimize the economic destruction by racing to the

courts for injunctive relief. That remedy has not deterred

the employees and their unions from violating the major

purpose of the RLA: avoidance of interruption to the

Carrier’s operations and to commerce. Providing the

lower courts with the full range of remedies will promote

the Congressional intent that minor disputes be peace-

fully resolved through the compulsory arbitration mecha-

nism in the RLA.

Moreover, denial of a damages remedy to employers

— when that same remedy is available to other parties -

distorts the statutory intent. The court below sanctioned

such an improper asymmetry by finding that unions are

EEE EEE Eee

11

allowed to recover damages for violations of Section 6 of

the RLA, but carriers are not allowed to recover damages

under Sections 2 First and 3 First (i). There is no statutory

authority for such a distinction.

Furthermore, the resulting dichotomy cuts against

this Court’s teaching in Chicago & North Western, that

Section 2 First is the “heart” of the RLA. If the courts

refuse to allow all available remedies to enforce the

“heart” of the RLA, but allow such remedies to enforce

other sections, then the proper administration of the RLA

will falter. This writ of certiorari should be granted to

clear up this confusion and stop the asymmetrical devel-

opment of the law of remedies under the RLA.

I. The Decision Below Rests on a Precedent Whose

Bases are no Longer Valid.

This case presents a situation in which the dispositive

rule of law was established in a precedent whose doctri-

nal foundations have been entirely eroded. The Fifth

Circuit held that its Brown decision controlled the dispo-

sition of this case. 961 F.2d at 89. The court gave no

rationale for the continued validity of the 34-year-old

decision in Brown, other than to say that there were no

Supreme Court decisions which held that damages were

available for a breach of Section 2 First. 961 F.2d at 89.

The Fifth Circuit did not explain why the result in Brown

represented a sound interpretation of the RLA, but

merely reflected that in the absence of contrary precedent

from this Court, “this panel is bound to follow the hold-

ing in Brown.” 961 F.2d at 89.

12

Other courts have also found the Fifth Circuit’s

Brown decision controlling. In National Airlines v. Airline

Pilots Association International, 431 F. Supp. 53 (S.D. Fla.

1976), the court followed Brown to find there was no right

of action for compensatory damages for a breach of Sec-

tion 2 First when the union had engaged in bad faith

bargaining.

In CSX Transportation v. Marquar, No. 90-399, slip op.

(E.D. Ky. 1991), appeal pending, No. 91-5689 (6th Cir.) (the

opinion is set forth in Appendix F at 17a to 21a), the court

was faced with a union unlawfully striking over a minor

dispute; in all respects, the court noted, this case is indis-

tinguishable from the instant case. (slip op. at 4; 19a). The

court recognized that although there were “very valid

arguments, supported by the legislative history and fair-

ness concerns, in favor of allowing damages,” it was “not

in a position to allow such relief.” (slip op. at 4; 21a).

Brown stands as a roadblock to lower courts seeking

to develop proper remedies under the RLA. However, the

reasoning of Brown is no longer valid. Brown had three

bases: (1) because the NLRA had express damage provi-

sions and the RLA did not, Congress intended no dam-

ages under the RLA; (2) the civil rights statutes without

express remedy provisions, like the RLA at the time, were

construed as not allowing damages; and (3) state law

allowed a compensatory damages remedy. None of these

bases is sound any longer.

This Court has repeatedly admonished that the RLA

was not drafted with the same policies or design as the

iS

NLRA. Analogies or comparisons with the NLRA

“should be drawn with the utmost care and with full

awareness of the differences between these statutory

schemes.” Chicago & North Western, 402 U.S. at 579 n.11.

The RLA was intentionally designed without specific

remedies, and the drafters intended that the federal

courts enforce and develop appropriate judicial remedies

on a case-by-case basis. Chicago & North Western, 402 U.S.

at 579-81. On the other hand, under the NLRA, Congress

set forth detailed provisions regarding specific proscribed

activities, established an agency to determine violations

of and remedies for violations of those provisions, and

permitted direct court action for breaches of collective

bargaining agreements. 29 U.S.C. § 151, et seq. Brown's

rationale, that when Congress wanted to set forth a speci-

fic remedy in a labor-management statute it knew how to

do so, is without merit due to the differences in the

schemes between the NLRA and the RLA; and it is partic-

ularly unsound in light of the RLA drafters’ declared

intent and this Court’s adoption of such intent. Chicago &

North Western, 402 U.S. at 876-77.

Brown also compared the absence of a damages rem-

edy under the RLA to the express damage remedies

under certain civil rights statutes, 42 U.S.C. §§ 1983, 1985,

and 1986. 252 F.2d at 155. Brown, again, rationalized that

where Congress intended a damages remedy, it had spec-

ifically set forth rights of action under those statutes. 252

F.2d at 155. This analogy suffers from the same defects as

the panel’s analogy to the NLRA, and the blurring of the

distinction between rights of action and remedies.

14

However, since Brown, for those civil rights statutes, 42

U.S.C. §§ 1981 and 1982, which do not have express remedies

provisions, this Court has held that though Congress did not

set forth a specific remedy for violations of those statutes, a

damages remedy is available. Johnson v. Railway Express

Agency, 421 U.S. 454, 460 (1975); Sullivan v. Little Hunting

Park, Inc., 396 U.S. 229, 238 (1969). Particularly relevant here

is that the Sullivan Court relied upon this Court’s decision in

Texas & New Orleans Railroad v. Brotherhood of Railway &

Steamship Clerks, 281 U.S. 548 (1930) (“Railway Clerks”), as

support for its reasoning that the mere absence of a remedy

in a statute does not prohibit the imposition of a remedy by

the courts. In Railway Clerks, this Court not only found an

implied right of action for violation of Section 2 Third of the

RLA, but also held that all remedies were available even

though the RLA had not expressly stated a remedy. 281 U.S.

at 569.

The last basis for Brown's ecision was the availabil-

ity of state law remedies. 22 F.2d at 156. The law of

preemption has swept away this basis. Even National

Airlines found that the carrier’s state law claims were

preempted by the RLA. 431 F. Supp. at 55-56. To the

extent that Brown depends on the availability of such

state law remedies as support for its holding that mone-

tary relief was not available under the RLA, that support

is also not sound.

The Fifth Circuit’s decisions in Brown and in this case

have essentially blocked the evolution of the law of

remedies under the RLA. Yet, the doctrinal foundation for

this line of cases has been entirely eroded. Review in this

Court is necessary to permit a fresh and sound approach

to the important issue raised here.

15

II. The Decision Below Conflicts with this Court's

Decisions Finding an Implied Cause of Action

Under the RLA to Enforce Sections 2 First and 3

First (i).

A. The Railway Labor Act Creates Implicit Causes

of Action for Enforcement of the Act’s Various

Duties and Obligations.

This case is significant to both the rail and airline

industries, in that it concerns one of the most important

purposes of the RLA. One of the major purposes of the

Act is “[t]o avoid any interruption to commerce or to the

operation of any carrier engaged therein.” 45 U.S.C.

§ 15la(1); Railway Clerks, 281 U.S. at 565. To prevent

strikes, the RLA imposes various reciprocal obligations

upon rail carriers, their employees, and their employees’

representatives.

The RLA mandates, under Section 2 First, that it is

the duty of the union “to avoid any interruption to com-

merce or to the operation of any carrier... .” 45 U.S.C.

§ 152 First. The duties under Section 2 First of the RLA

were “designed to be a legal obligation, enforceable by

whatever appropriate means might be developed on a

case-by-case basis.” Chicago & North Western, 402 U.S. 570,

977 (1971). The Court has also stated that this duty is the

“heart” of the RLA. Brotherhood of R.R. Trainmen v. Jackson-

ville Terminal Co., 394 U.S. 369, 377-78 (1969), reh’g denied,

394 U.S. 1024 (1969). Thus, the Court found an implied

cause of action existed under Section 2 First.

Additionally, this Court has recognized that, under

the RLA, Congress imposed upon the unions and rail

16

carriers a Section 3 First (i) duty to resolve minor dis-

putes by binding arbitration and not by self-help. In

Chicago River, this Court found there was an implied

cause of action under Section 3 First (i) which is enforce-

able by the issuance of an injunction against a threatened

strike. See also Conrail, 491 U.S. at 303.)

Thus, it is beyond dispute that from the language in

the RLA creating rights and duties, this Court has recog-

nized implied causes of action for the enforcement of

various RLA duties, including Sections 2 First and 3 First

(i). See Cannon v. University of Chicago, 441 U.S. 677, 691

n.13 (1979). Thus, the sole inquiry is what remedies are

available under the RLA to enforce violations of these

sections. The general rule this Court has employed is that

all remedies are available unless Congress explicitly indi-

cated otherwise. Davis v. Passman, 442 U.S. 228, 246-47

(1979). As will be demonstrated in part “B” below, Con-

gress’ silence with respect to the remedies for violations

of RLA duties was not intended to minimize or under-

mine the importance of those duties, nor to limit available

judicial remedies for their enforcement. Rather, Congress

intended for the courts to perform their traditional duty

of crafting RLA remedies appropriate to the particular

facts and circumstances of each case. This is in keeping

1 The airlines do not have a national arbitration board.

Rather, Congress provided that airlines and unions should

establish arbitration boards by agreement under Section 204 of

the RLA. 45 U.S.C. § 184. This Court has found an implied cause

of action under Section 204. Machinists v. Central Airlines, 372

U.S. 682 (1963), reh’g denied, 373 U.S. 947 (1963).

17

with this Court’s longstanding rule that where an implied

cause of action exists under the laws of the United States,

and Congress does not specify the remedy, courts are

empowered to award any appropriate relief. Bell v. Hood,

327 U.S. 678 (1946). Because the Fifth Circuit ignored this

longstanding rule, this Court should grant the writ of

certiorari to allow for the proper development of

remedies for the violation of duties under the RLA.

B. Congress has Provided Courts with Discretion

to Fashion Appropriate Remedies for Viola-

tions of the Railway Labor Act.

The RLA, with a few minor exceptions,? does not

provide express penalties, relief, or remedies for viola-

tions of its substantive provisions. As a result of the lack

of express statutory language regarding remedies, in

those cases where this Court has recognized implied

rights of action under the RLA, the Court has also recog-

nized the general rule. According to that rule, when there

is an implied right of action, all appropriate, traditional

remedies are presumptively available.

In Railway Clerks, this Court established the principle

that the absence of express remedies in the RLA did not

imply any Congressional limitation on enforcement

remedies:

2 For instance, the RLA provides for specific remedies for

enforcement of adjustment board awards, 45 U.S.C. § 153 First

(p) and (q), and enforcement of interest arbitration awards, 45

U.S.C. § 159.

18

The absence of a penalty is not controlling. The

creation of a legal right by language suitable to that

end does not require for its effectiveness the impo-

sition of statutory penalties. Many rights are

enforced for which no statutory penalties are pro-

vided. In the case of the statute in question, there is

an absence of penalty, ... but ... a legal

obligation is created and the statutory require-

ments are susceptible of enforcement by proceed-

ings appropriate to each ... The right is created

and the remedy exists (citations omitted).

281 U.S. at 569-70. There, the Court implied a cause of

action for violation of Section 2 Third of the RLA. See

Davis, 442 U.S. at 239 n.17. This Court reaffirmed the

availability of remedies in Virginian Railway Company v.

System Federation No. 40, 300 U.S. 515 (1937), for a viola-

tion of Section 2 Ninth of the RLA.

In Steele v. Louisville & Nashville Railroad Company, 323

U.S. 192, 203 (1944), this Court further defined the

breadth of judicial relief available for violations of the

RLA’s statutory commands:

For the present command there is no mode of

enforcement other than resort to the courts, whose

jurisdiction and duty to afford a remedy for a

breach of statutory duty are left unaffected... . We

conclude that the duty which the statute imposes

... and that the statute contemplates resort to the

usual judicial remedies of injunction and award of dam-

ages when appropriate.

323 U.S. at 207 (emphasis added). There, an implied cause

of action against the unions for breach of the duty of fair

representation was found for violation of Section 2

Fourth.

19

Of particular importance here are this Court’s deci-

sions in Chicago River and Chicago & North Western. In the

latter case, the Court instructed federal courts to enforce

the legal obligations of Section 2 First of the RLA “by

whatever means might be developed on a case-by-case

basis.” 402 U.S. at 577.

This Court found support for allowing the full range

of remedies to be utilized by the lower courts from the

legislative history of the Act. The Chicago & North Western

Court pointed out that the Railway Labor Act of 1926 was

an agreement worked out between management and

labor and ratified by the Congress and the President. 402

U.S. at 576. “Accordingly, the statements of the spokes-

men for the two parties made in the hearings on the

proposed Act are entitled to great weight in the construc-

tion of the Act.” 402 U.S. at 576 n.7. This Court quoted

from the testimony of Donald R. Richberg, counsel for the

organized railway employees, stating the reasons why the

Railway Labor Act was drafted in general language appli-

cable equally to both parties, rather than in terms of

specific requirements or prohibitions accompanied by

explicit sanctions. Mr. Richberg stated that railroad labor

relations would best be served by letting courts craft

appropriate remedies in the same manner “in which the

common law has developed in England and America.”

402 U.S. at 577.9

3 In yet another passage of the hearings on the 1926 RLA,

Mr. Richberg testified that the RLA’s silence should not lead to

the absence of remedies for violations of the Act:

We have avoided in the bill in any way setting up any

penalty section or any sections for the invocation of

any judicial authority, except in the enforcement of an

20

The “common law” envisioned by the drafters

allowed courts to craft appropriate remedies for viola-

tions of clear statutory duties. Indeed, this Court has

repeatedly subscribed to this principle in the century

prior to the enactment of the RLA.4

arbitration award. The thought being this, that so far

as this law stated duties imposed upon the parties by

act of Congress, if they failed to live up to their duties,

and there was any action which a court could take

consistent with its powers and its limitations, to com-

pel the enforcement of that duty as a legal obligation,

it would be subject to enforcement. But the law for

such enforcement or compulsion should be devel-

oped in the courts, according to the old common law

theory of letting the courts develop the law after the

obligations are ciearly understood, rather than to

write into the law a specific line of penalties and writs

of enforcement.

Hearings on Railroad Labor Disputes Before the House Committee on

Interstate and Foreign Commerce, H.R. 7180, 69th Cong., 1st Sess.,

p- 40 January 26, 1926).

4 See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803)

(“ ‘[I]t is a general and indisputable rule, that where there is a

legal right, there is also a legal remedy by suit, or action at law,

whenever that right is invaded’ ”) (quoting 3 W. Blackstone,

Commentaries 23); Kendall v. United States, 37 U.S. (12 Pet.) 524,

624 (1838) (“It cannot be denied but that Congress had the

power to command that act to be done; and the power to enforce

the performance of the act must rest somewhere, or it will

present a case which has often been said to involve a monstrous

absurdity in a well organized government, that there should be

no remedy, although a clear and undeniable right should be

shown to exist”); Pollard v. Bailey, 87 U.S. (20 Wall.) 520, 527

(1874) (“A general liability created by statute without a remedy

may be enforced by an appropriate common-law action”); De

Lima v. Bidwell, 182 U.S. 1 (1901) (“If there be an admitted

wrong, the courts will look far to supply an adequate remedy”).

21

Thus, when this Court stated in Chicago & North

Western, that the duties and obligations of the RLA

should be enforced “by whatever means might be devel-

oped on a case-by-case basis,” 402 U.S. at 577, the Court

was applying the longstanding rule that when a statute

creates a cause of action and is not specific as to a

remedy, the courts may fashion any appropriate remedy.

One of those appropriate remedies is monetary relief.

This is the principle that should have been found control-

ling here. Just last term this Court, in Franklin, strongly

reaffirmed that rule.

C. The Decision of the Court Below Limiting the

Available Judicial Remedies for Violations of

the RLA is Inconsistent with the Principles

Enunciated by this Court Concerning Enforce-

ment of Statutory Rights When the Statute does

not Provide Specific Remedies.

In Franklin, this Court stated that it will “presume the

availability of all appropriate remedies unless Congress

has expressly indicated otherwise.” 112 S. Ct. at 1032

(citing Davis v. Passman, 442 U.S. 228, 246-47 (1979)). The

Court then recognized that the history of this legal pre-

sumption “has deep roots in our jurisprudence.” 112 S.

Ct. at 1033. Thereafter, the Court summarized:

The general rule, therefore, is that absent clear

direction to the contrary by Congress, the fed-

eral courts have the power to award any appro-

priate relief in a cognizable cause of action

brought pursuant to a federal statute.

112 S. Ct. at 1035.

22

The Fifth Circuit erroneously rejected this Court’s

“general rule” in the decision below.°> Rather than apply-

ing this Court’s general rule, the court reaffirmed its

Brown decision which held that “a carrier had no cause of

action under the Railway Labor Act for damages caused

by an illegal strike.” 961 F.2d at 89 (emphasis added). The

court did not try to reconcile this result with its recogni-

tion that there was an implied cause of action for an

injunctive remedy against a union’s illegal strike under

the same section of the RLA. 961 F.2d at 88-89, and n.12.

Insofar as the opinion confuses the distinction between

an implied cause of action and the available remedies, it

is at odds with this Court’s decision in Franklin. 112 S. Ct.

at 1032.

The court below cited no statutory basis for its hold-

ing that the remedy available to a carrier for a union’s

breach of its Section 2 First and 3 First (i) duty does not

include monetary relief. In Franklin, however, this Court

performed a probing analysis of the statute in question to

determine whether Congress intended to limit applica-

tion of the “general rule” and place some implicit limit on

the remedies available. The Fifth Circuit’s decision dem-

onstrated no such analysis. In fact, any such analysis

would find no limit because the drafters of the RLA

° The Fifth Circuit did recognize the existence of the deci-

sion in Franklin in passing. 961 F.2d at 89 n.9. Yet, the court’s

analysis was limited to the statement that “[a]gain, even if this

court were considering the issue on a clean slate, Franklin would

not control.” Id.

en

23

intended for the courts to have available all remedies for

enforcement of violations of the Act. The court below

failed to recognize that the issue of what remedies are

available is analytically distinct from the issue of whether

a right of action exists in the first place. 112 S. Ct. at 1032

(citing Davis v. Passman, 442 U.S. 228, 239 (1979)). For

these reasons, it would be appropriate to grant the writ of

certiorari in this case.

III. There are Neither Policy nor Statutory Bases for

the Decision of the Court Below Which Recog-

nized a Dual Standard Under the RLA, Whereby

Unions May Obtain a Monetary Remedy From a

' Carrier, but a Carrier May not Obtain Such a Rem-

edy From a Union.

In its arguments to the court below, BN urged that

certain Fifth Circuit decisions had recognized that a mon-

etary remedy could be awarded under the Act. 961 F.2d at

88 (citing United Indus. Workers of the Seafarers Int'l Union

v. Board of Trustees of Galveston Wharves, 400 F.2d 320 (5th

Cir. 1968), cert. denied, 395 U.S. 905 (1969) (“Galveston

Wharves”). In Galveston Wharves, the Fifth Circuit awarded

back pay to employees who were wrongfully discharged

when the carrier unilaterally altered the terms of an

agreement without following the procedures dictated by

Section 156, 45 U.S.C. § 156. The court below distin-

guished Galveston Wharves solely on the ground that it

involved a different section of the RLA, Section 156.

Given that there is no statutory basis for distinguishing

between the remedies which are available under Sections

152 First and 153 First (i) and those that are available

under Section 156, BN submits that the Fifth Circuit's

24

decision recognized an inappropriate dual standard. That

is, when a carrier unilaterally changes working condi-

tions in violation of Section 156, a monetary remedy is

available to the employees, but such a remedy is unavail-

able to the carrier when a union strikes in violation of

Sections 152 First and 153 First-(i). There is neither statu-

tory basis nor sound policy for this dual standard.

Further, BN submits that this case is significant to the

entire rail industry, as well as the airline industry,

because if the decision below is allowed to stand, it

would arm the unions with additional remedies which

are not available to the carriers. This would result in an

unbalanced scheme of labor relations in the railroad and

airline industries. Under this skewed scheme, unions can

conduct illegal strikes, such as the one in this case, with

impunity.© The carrier’s only remedy, under the rule

announced by the court below, is to obtain an injunction

as swiftly as possible to prohibit the union from doing

that which was unlawful. Until the carrier is able to

obtain an injunction, the union is free to impose economic

6 In this case, the object of the union’s strike was not for any

other lawful purpose. Rather, BN submits the purpose of this

strike was a public protest. This contention is evidenced by the

fact that the union’s strike was called for only a short (24 hour)

duration and was heavily publicized by a professional public

relations firm. Statements made in the union’s press release

indicated that the strike was called because “compromise was

not working nor was arbitrating the issue ...” (Rec. 328).

25

havoc on the carrier without fear of any sanction.”? Even

after obtaining the injunction, the carrier continues to

shoulder the economic loss. There is nothing in the lan-

guage of the RLA or the rationale of this Court’s deci-

sions to support this disparate treatment. Congress

placed the mutual obligations of Sections 2 First and 3

First (i) on both the carriers and the employees or their

representatives. In the current deregulated atmosphere,

the carriers will suffer even more from this asymmetry.

The economic and regulatory development of the air

and rail transportation industries, whose labor relations

are governed by the RLA, is at a crucial juncture. Both

industries, as well as the motor carrier industry, were

substantially deregulated in the period 1978-1980.8 The

major policy changes brought about by deregulation are

embodied, for the rail industry in particular, in the policy

statement which introduced the deregulatory act. See 49

U.S.C. §§ 10101a(1)-10101a(15). By placing railroads in the

flux of market forces, Congress strongly encouraged indi-

vidualized services and pricing of those services. The

expected result of this new competitive environment was

that railroads would begin customizing their services to

7 In the instant case, the BMWE publicized its success to its

members by claiming that normal railroad operations were

severely disrupted: “We should consider this a victory!” (Rec.

235, 263).

8 The airlines were deregulated by the Airline Deregulation

Act of 1978, Pub. L. No. 95-504, 92 Stat. 1705 (1978); the railroads

by the Staggers Rail Act of 1980, Pub. L. No. 96-448, 94 Stat. 1897

(1980); and the motor carriers by the Motor Carrier Act of 1980,

Pub. L. No. 96-296, 94 Stat. 793 (1980).

26

meet marketplace demands to the greatest extent possi-

ble. One of the natural outcomes of this process during

the past dozen years has been a frequent need by the

railroads to utilize the contours of their existing collective

bargaining agreements and work rules in order to meet

the marketplace demands. Cf. Conrail, 491 U.S. at 309. The

union’s reaction, as evidenced here by the BMWE, is to

protest the RLA scheme of compulsory arbitration by

striking BN over an obviously minor dispute. Without the

availability of all remedies, the unions will increasingly

be inclined to sidestep congressionally mandated RLA

arbitral resolution mechanisms in these disputes, and

resort to self-help. The decision below will be viewed as a

sanction of the protest movement. By recognizing the

availability of a monetary remedy for a carrier as a result

of a union’s unlawful self-help in a minor dispute, the

Court can promote the channeling of these disputes to

compulsory arbitration as mandated by Congress. See also

Conrail, 491 U.S. at 311.

In the absence of review by this Court, the rule

perceived as binding by the lower courts will continue to

have an adverse affect: it will encourage both economic

disruption and less utilization of congressionally manda-

ted arbitration. Without the prospect of a monetary rem-

edy, the unions have little reason to refrain from striking

in a minor dispute. Because no monetary remedy is avail-

able, carriers are left to seek prospective injunctive relief

in every such case and at the earliest possible moment.

The courts are repeatedly drawn into the battle. This is

not what Congress intended when enacting the com-

pulsory arbitration procedures of the RLA. This economic

disruption by the unions continues to have an adverse

27

affect on the public and the long-term health of these

critical transportation industries.

¢

CONCLUSION

For these reasons, a writ of certiorari should issue

and the judgment and decision of the Fifth Circuit Court

of Appeals should be reversed.

Respectfully submitted,

THomas J. KNAPP

Counsel of Record

LAWRENCE M. STROIK

CHARLES W. SHEWMAKE

Opesa L. GORMAN-STAPLETON

BURLINGTON NorTHERN

RAILROAD COMPANY

3800 Continental Plaza

777 Main Street

Fort Worth, Texas 76102

(817) 878-2380

FAX: (817) 878-2377

Attorneys for Burlington

Northern Railroad Company

la

APPENDIX A

BURLINGTON NORTHERN RAILROAD

CO., a corporation, Plaintiff-Appellant,

Vv.

BROTHERHOOD OF MAINTENANCE OF WAY

EMPLOYEES, an unincorporated association, et al.,

Defendants-Appellees.

No. 91-1440.

United States Court of Appeals,

Fifth Circuit.

May 22, 1992.

Rehearing and Rehearing En Banc

Denied July 9, 1992.

Railroad sought injunctive and monetary relief

against union for illegal strike. The United States District

Court for the Northern District of Texas, John McBryde,

J., granted injunction but denied monetary relief. Rail-

road appealed. The Court of Appeals, Wisdom, Circuit

Judge, held that carrier had no cause of action under

Railway Labor Act for damages caused by illegal strike.

Affirmed.

a * +

Thomas J. Knapp, Lawrence M. Stroik, Charles W.

Shewmake, Burlington Northern R. Co., Ft. Worth, Tex.,

for plaintiff-appellant.

Sanford Ross Denison, William A. Bon, Susan H.

Durham, Irving, Tex., for defendants-appellees.

Appeal from the United States District Court For the

Northern District of Texas.

«

ee eee

2a

Before WISDOM, JONES, and SMITH, Circuit Judges.

WISDOM, Circuit Judge.

The plaintiff-appellant, Burlington Northern Railroad

Company (“BN”), contends that the district court erred

by dismissing its demand for monetary relief. BN chal-

lenges the district court’s application of Louisville &

Nashville Railroad Co. v. Brown,’ a decision of this Court,

to the facts of this case. BN also questions the continued

validity of that precedent. We affirm.

I. BACKGROUND

The defendant-appellee, the Brotherhood of Mainte-

nance of Way Employees (“BMWE” or “the union”), is the

collective bargaining representative of certain employees

of BN. BMWE and BN are parties to a collective bargain-

ing agreement that governs the hours of service, rates of

pay, and working conditions of the covered employees

(“the Schedule Agreement”). BMWE and BN are also

parties to a supplemental agreement concerning employ-

ment of union members in the process of laying railroad

ties, specifically in connection with the use of the P811-S,

a machine that lays concrete ties (“the P811-S Agree-

ment”).

In March 1990, BN notified BMWE that it intended to

utilize a newly developed clip and insulator installation

machine (“the clipcar”) in the process of laying concrete

ties. BN stated that the contractor’s personnel would be

1 252 F.2d 149 (5th Cir.), cert. denied, 356 U.S. 949, 78 S.Ct.

913, 2 L.Ed.2d 843 (1958).

3a

operating this new machine rather than BMWE members.

BMWE objected to BN’s plans to contract out this work,

and requested a conference to discuss the matter.

During the conference held on April 5, 1990, BN

argued that it was entitled to contract out this work by

virtue of provisions in the Schedule Agreement that allow

BN to contract out work under specified conditions.

BMWE, on the other hand, stated that this work was

covered by the provisions of the P811-S Agreement that

require all “clipping” work to be “bulletined”? to BMWE

members.

In May 1990, BMWE notified BN that if BN pro-

ceeded to contract out this work, the union would con-

sider this to be a unilateral change in the P811-S

Agreement.3 BN responded that it had the right to con-

tract out this work and that to do so would not constitute

2 A bulletin is the procedure whereby members of BMWE

bid on jobs.

3 In the terminology used in discussions of the Railway

Labor Act, a dispute over changes in rates of pay, rules, or

working conditions is a “major dispute”. A dispute arising out

of grievances or out of the interpretation or application of agree-

ments concerning the rates of pay, rules, or working conditions

is a “minor dispute”.

Under the Act, minor disputes are subject to compulsory

arbitration and the parties may not resort to self-help. Thus, a

district court may enjoin a strike over a minor dispute. Major

disputes are the subject of voluntary arbitration, and the parties

may resort to self-help only after the procedures described in

the Act have been exhausted. A strike by the union over a tnajor

dispute may also be enjoined prior to exhaustion of those pro-

cedures, unless the carrier has already violated the status quo

by making a unilateral change in working conditions.

Ee

4a

a unilateral change in any of the agreements between the

parties.

BN had learned that BMWE planned to strike over

this issue and filed an action against BMWE* seeking

injunctive relief and damages. BN also moved for a tem-

porary restraining order. The district court issued a TRO

at 2:30 a.m. on June 26, 1990, enjoining the strike. On June

26, 1990, at 6:00 a.m., before being served with the TRO,

BMWE initiated a twenty-four hour strike against BN in

response to BN’s contracting out for the clipcar work.

Upon notice of the entry of the TRO, BMWE ceased all

strike activity. The parties agreed to continue the TRO

until after a hearing on BN’s motion for a preliminary

injunction.

The hearing on the preliminary injunction was held

on August 20, 1990. The court, without ruling on BN’s

demand for monetary relief, granted the preliminary

injunction. The court found a substantial likelihood that

the dispute was a minor dispute under the Railway Labor

Act, and that therefore BMWE could not resort to self-

help.>

In January 1991, BN moved for summary judgment

on its demands for a permanent injunction and for mone-

tary relief. In February 1991, BMWE moved to dismiss

BN’s demand for monetary relief. On February 14, 1991,

4 The complaint also named as defendants several individ-

ual officers of BMWE. For convenience, the defendants will be

referred to collectively as “BMWE”.

5 The parties have not appealed any of the court's rulings

with respect to the preliminary injunction.

5a

the district court granted BN’s motion for summary judg-

ment with respect to the permanent injunction, but

denied the motion with respect to the demand for mone-

tary relief. On March 7, 1991, the district court granted

BMWE’s motion to dismiss BN’s demand for monetary

relief, and entered a final judgment. After the district

court granted a motion to reconsider, and amended the

permanent injunction, BN timely noticed this appeal from

the order granting BMWE’s motion to dismiss the

demand for monetary relief.

II. DISCUSSION

On appeal, BN contends that the district court erred

in dismissing its demand for monetary relief. The district

court granted BMWE’s motion to dismiss on the authority

of this Circuit’s decision in Louisville & Nashville Railroad

Co. v. Brown. BN contends that the district court incor-

rectly applied Brown to the facts of this case. BN argues

alternatively that, if Brown does control this case, it

should be overruled.

A. The applicability of Brown.

In Brown, a railroad brought suit against several of

its employees seeking damages caused by the employees’

inciting a strike that shut down the railroad for three

days. On appeal this Court recognized that 45 U.S.C.

§ 152 First creates a duty on the part of the employees “to

exert every reasonable effort . . . to settle all dis-

putes ... in order to avoid any interruption to commerce

’

6a

or to the operation of any carrier”. The Court held, how-

ever, that § 152 First did not create a cause of action for

damages caused by an illegal strike.

In this case, BN seeks damages caused by BMWE’s

short-lived, illegal strike. BN contends that BMWE is

liable for the losses suffered by BN due to BMWE’s

violation of its duty under § 152 First and § 153 First (i) to

submit a minor dispute to binding arbitration. BN argues

on appeal that Brown, which held that damages were not

available for a violation of this duty, can be distinguished

from the present suit.

BN first attempts to distinguish Brown on its facts.

Apparently, BN would have this Court limit the holding of

Brown to situations in which the employer sues individual

employees rather than the union. While the factual situations

may differ, the holding in Brown was not limited to its

particular facts. Furthermore, we see no reason to so limit the

holding of Brown. Indeed, other courts have recognized

Brown as holding that there is no cause of action against a

union for damages for a breach of the § 152 First duty.”

6 BMWE’s strike must be considered illegal in light of the

district court’s finding that the dispute was minor. BMWE does

not challenge this finding.

7 See, e.g., Kennedy v. Long Island R.R., 319 F.2d 366, 372 n. 7

(2d Cir.), cert. denied, 375 U.S. 830, 84 S.Ct. 75, 11 L.Ed.2d 61

(1963); Maas v. Frontier Airlines, Inc., 676 F.Supp. 224, 227

(D.Colo. 1987); and National Airlines, Inc. v. Airline Pilots Ass’n —

Int'l, 431 F.Supp. 53, 54 (S.D.Fla.1976). See also Dennis A.

Arouca, Damages for Unlawful Strikes Under the Railway Labor

Act, 32 Hastings LJ. 779, 793 (1981) (In Brown the Fifth Circuit

“refus[ed] to allow damages to carriers for union violation of

sections 2 First and 3”).

icine

7a

BN also argues that Brown did not consider whether

damages could be awarded as part of equitable relief. BN

argues that this Court’s decision in United Industrial

Workers of the Seafarers Int'l Union v. Board of Trustees of

Galveston Wharves,® holds that monetary relief may be

awarded as part of the equitable relief ordered by the

court. In Galveston Wharves the Court awarded back pay

to employees who were wrongfully discharged when the

carrier unilaterally altered the terms of a collective bar-

gaining agreement without following the procedures dic-

tated by 45 U.S.C. § 156.

Galveston Wharves is inapposite to this case. The mon-

etary award in Galveston Wharves was in response to a

violation of § 156; Brown addressed a violation of § 152

First. The holding of Galveston Wharves that monetary

relief is available for a breach of § 156 does not conflict

with the holding of Brown that no monetary relief is

available for a breach of § 152 First.? Nor do we find that

8 400 F.2d 320 (5th Cir. 1968), cert. denied, 395 U.S. 905, 89

S.Ct. 1747, 23 L.Ed.2d 219 (1969).

9 The duties created by the two sections of the Act are not

identical. Section 156 concerns the carrier’s and the union’s

duty to maintain the status quo while negotiating changes in

collective bargaining agreements. There are no cases stating that

damages are not available to the carrier if the union violates this

duty.

Because it considers a different section of the Act, Galveston

Wharves would not control the outcome of this case even if this

Court were considering the issue on a clean slate. Note also that

the Court in Galveston Wharves did not even mention Brown,

which indicates that the issues in the two cases were not

thought to be related.

BN also suggests that Franklin v. Gwinnett County Public

Schools, ___ U.S. __, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992),

8a

the holding of Brown is limited to a situation in which the

plaintiff classifies the damages as a legal remedy as

opposed to an equitable remedy. Regardless of the label

attached to the damages sought, the nature of the relief

sought in this case is identical with that sought in Brown -

the railroad wants to recover the money it expended as a

result of the illegal strike. Galveston Wharves provides no

support for BN’s position.

While the Brown holding did not directly address a

violation of § 153 First (i), we find that a violation of this

section is within the holding of Brown.'° Section 153 First

(i) mandates compulsory arbitration to resolve minor dis-

putes.'! When an illegal strike occurs over a minor dis-

pute, the employees or the union have violated not only

§ 152 First but also § 153 First (i). We find that the holding

in Brown is not limited to the situation in which the

carrier fails to plead the violation of the latter section. We

are also not aware of any case in which damages have

been awarded for violation of § 153 First (i).!2

undermines Brown. Franklin holds that damages are available in

a suit under Title IX. Again, even if this Court were considering

the issue on a clean slate, Franklin would not control.

10 See, Arouca, supra note 7, at 792-93 (indicating that Brown

held that damages were not allowed for a violation of § 152 First

or for a violation of § 153).

11 Brotherhood of R.R. Trainmen v. Chicago River & Ind. R.R.,

353 U.S. 30, 39, 77 S.Ct. 635, 639, 1 L.Ed.2d 622 (1957).

12 In Chicago River the Supreme Court held that an injunc-

tion could issue to enjoin compliance with § 153 First (i); the

Court did not address the question of whether damages could

be awarded.

9a

This Court previously held in Brown that a carrier

had no cause of action under the Railway Labor Act for

damages caused by an illegal strike. The district court

correctly held that the holding in Brown controlled the

disposition of the present suit.

B. The continued validity of Brown.

BN argues alternatively that Brown should be over-

ruled. “In this circuit one ‘panel may not overrule the

decision, right or wrong, of a prior panel’ in the absence

of en banc reconsideration or superseding decision of the

Supreme Court.”!% This Court has never considered the

issue en banc.!4 BN has not directed the attention of this

Court to any Supreme Court decision holding that mone-

tary relief is available for a breach of the § 152 First

duty.!5 Thus, this panel is bound to follow the holding in

Brown.

13 Pruitt v. Levi Strauss & Co., 932 F.2d 458, 465 (5th Cir.

1991) (quoting Brown v. United States, 890 F.2d 1329, 1336 (5th

Cir. 1989)) (other citations omitted).

14 Indeed, in the history of the Railway Labor Act, the

Brown panel is the only federal appellate court to have consid-

ered the question.

15 There are no reported cases awarding damages for the

breach of the § 152 First duty. In Denver & R.G.W.R.R. v. Brother-

hood of R.R. Trainmen, 387 U.S. 556, 87 S.Ct. 1746, 18 L.Ed.2d 954

(1967), the Supreme Court was presented with a case in which

the district court had awarded damages. The only issue decided

by the Supreme Court, however, was a venue issue; the Court

did not address the issue of monetary relief. On remand to the

district court, the case was apparently dismissed with prejudice

and the damages were never collected. Thus, Denver does not

provide any authority for the proposition that monetary relief is

10a

III. CONCLUSION

The district court correctly dismissed the demand for

monetary relief on the authority of Brown. The decision of

the district court is AFFIRMED.

available.

See also, Harry Lustgarten, Principles of Railroad and Airline

Labor Law (1984):

The Railway Labor Act does not specifically authorize

a carrier to recover damages for an unlawful strike

and there has been no judicial decision indicating that

such a right exists. It appears unlikely, moreover, that

the courts in the future would be inclined to allow

such damages in view of the potential impact it might

have upon the unions’ ability to represent the

employees.

Id. at 157.

lla

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

BURLINGTON NORTHERN

RAILROAD COMPANY,

§

Plaintiff, § CIVIL ACTION

VS. § NO. 4-90-463-A

§

§

§

§

§

BROTHERHOOD OF (Filed

MAINTENANCE OF WAY March 7, 1991)

EMPLOYES, ET AL,

Defendants.

ORDER

Came on for consideration the motion of defendants,

Brotherhood of Maintenance of Way Employes, Ben

Ochoa, E. R. Spears, Paul S. Swanson, and Bruce G.

Glover, to dismiss plaintiff’s claim for damages or other

monetary relief. The court, having considered the motion,

the response of plaintiff, Burlington Northern Railroad

Company, thereto, and the record as a whole, finds that

the motion is well-taken and should be granted. The law

is clear that there is no statutory right of action for

damages for breach of a § 2 First Duty under the Railway

Labor Act. 45 U.S.C. § 152 First. Louisville and Nashville

Railroad Company v. Brown, 252 F.2d 149, 155 (5th Cir.),

cert. denied, 356 U.S. 949 (1958); National Airlines, Inc. v.

Airline Pilots Association International, 431 F. Supp. 53, 54

(S.D. Fla. 1976).

12a

The court ORDERS that defendants’ motion to dis-

miss plaintiff’s claim for damages or other monetary

relief be and is hereby granted and plaintiff’s claims for

monetary relief are hereby denied.

By this order, the court is fully and finally disposing

of all remaining claims in this action. By orders dated

February 14, 1991, the court granted plaintiff’s motion for

summary judgment on the issue of permanent injunctive

relief and granted plaintiff a permanent injunction. The

court further ORDERS that all costs in this action be and

are hereby assessed against defendants.

SIGNED March 7, 1991.

/s/ John McBryde

JOHN MCBRYDE

United States District Judge

13a

APPENDIX C

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 91-1440

BURLINGTON NORTHERN RAILROAD CO.,

a corporation,

Plaintiff-Appellant,

versus

BROTHERHOOD OF MAINTENANCE OF WAY

EMPLOYEES, an unincorporated association,

ET AL.,

Defendants-Appellees.

Appeal from the United States District Court for the

Northern District of Texas

l4a

ON SUGGESTION FOR REHEARING EN BANC

(Opinion 05-22-92, 5 Cir, 198 , __ F.2d __)

(Filed July 9, 1992)

Before WISDOM, JONES and SMITH, Circuit Judges.

PER CURIAM:

(f) Treating the suggestion for rehearing en banc as a

petition for panel rehearing, it is ordered that the petition

for panel rehearing is DENIED. No member of the panel

nor Judge in regular active service of this Court having

requested that the Court be polled on rehearing en banc

(Federai Rules of Appellate Procedure and Local Rule 35),

the suggestion for Rehearing En Banc is DENIED.

() Treating the suggestion for rehearing en banc as a

petition for panel rehearing, the petition for panel rehear-

ing is DENIED. The judges in regular active service of

this Court having been polled at the request of one of

said judges and a majority of said judges not having

voted in favor of it (Federal Rules of Appellate Procedure

and Local Rule 35), the suggestion for Rehearing En Banc

is DENIED.

ENTERED FOR THE COURT:

/s/ John Minor Wisdom

United States Circuit Judge

15a

APPENDIX D

Section 2 First of the Railway Labor Act

45 U.S.C. § 152 First

First. Duty of carriers and employees to settle disputes

It shall be the duty of all carriers, their officers,

agents, and employees to exert every reasonable effort to

make and maintain agreements concerning rates of pay,

rules, and working conditions, and to settle all disputes,

whether arising out of the application of such agreements

or otherwise, in order to avoid any interruption to com-

merce or to the operation of any carrier growing out of

any dispute between the carrier and the employees

thereof.

ies

l6a

APPENDIX E

Section 3 First (i) of the Railway Labor Act

45 U.S.C. § 153 First (i)

(i) The disputes between an employee or group of

employees and a carrier or carriers growing out of griev-

ances or out of the interpretation or application of agree-

ments concerning rates of pay, rules, or working

conditions, including cases pending and unadjusted on

June 21, 1934, shall be handled in the usual manner up to

and including the chief operating officer of the carrier

designated to handle such disputes; but, failing to reach

an adjustment in this manner, the disputes may be

referred by petition of the parties or by either party to the

appropriate division of the Adjustment Board with a full

statement of the facts and all supporting data bearing

upon the disputes.

———— ee

17a

APPENDIX F

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

LEXINGTON

CIVIL ACTION NO. 90-399

CSX TRANSPORTATION, INC.,

PLAINTIFF,

V.

MEMORANDUM OPINION

(Filed MAY 3, 1991)

N.J. MARQUAR, et al.,

DEFENDANTS.

This matter is before the Court upon the defendants’

motion for dismissal. The plaintiff, CSX Transportation,

has filed this action seeking damages pursuant to the

Railway Labor Act (the “RLA”), 45 U.S.C. Sec. 151 et seq.,

FACTUAL BACKGROUND

CSX Transportation, Inc. (“CSXT”) assigned one of its

stationary gangs to begin repairs on a portion of railway

located between Cincinnati, Ohio and Louisville, Ken-

tucky on September 10, 1990. In order to perform its duty, .

this gang was required to work away from its head quar-

ters in Cynthiana, Kentucky.

During the course of this particular job, a dispute

arose between CSXT and the labor representative, the

es

18a

Brotherhood of Maintenance of Way Employees

(“BMWE”). The disagreement arose due to the different

manner in which CSXT and its workers interpreted a

collective bargaining agreement to which both sides sub-

scribed. CSXT provided lunch for the stationary gang by

taking orders from members of the gang, sending a truck

to pick up lunches, delivering the meals to the work site,

and allowing the workers to eat their lunches on the site.

Members of the gang asserted the position that, because

the work the gang was performing required the members

to carry out their duties away from their headquarters,

the workers were entitled to be taken, at the expense of

CSXT, to a hotel where some of the workers were staying,

and be permitted to eat their lunches there.

Without express authorization from BMWE, the Dixie

Federation, BMWE’s appointed representative, voted to

strike over this matter. This strike, which began on Sep-

tember 24, 1990, spread into eight states and CSXT suf-

fered substantial damages as a result. On October 10,

1990, this.Court issued a temporary restraining order to

prevent any further stoppage of CSXT’s operations. CSXT

is now asking for the damages it claims it suffered as a

result of the strike.

Analysis

On a motion to dismiss, “the allegations of the com-

plaint are generally taken as true.” Hughes v. Rowe, 449

U.S. 5, 10 (1980). The Sixth Circuit Court of Appeals has

emphasized: -

A motion to dismiss based on either lack of

subject matter jurisdiction or failure to state a

19a

claim upon which relief can be granted must be

viewed in the light most favorable to the party

opposing the motion. Similarly, the Court must

accept as true all the well-pled allegations in the

complaint under attack.

Great Lakes Steel, Div. of Nat'l Steel v. Deggendorf, 716 F.2d

1101, 1105 (6th Cir. 1983). All factual ambiguities are

resolved in favor of the plaintiff’s complaint, and “extrin-

sic evidence cannot be considered in determining

whether the complaint states a claim.” Roth Steel Products

v. Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir. 1983).

In order to find in favor of CSXT, the Court must first

find that BMWE violated the RLA. The RLA provides that

employees do not have the option to strike if the matter

in dispute is “minor.” Viewing the evidence in the light

most favorable to CSXT, the disagreement at issue was

“minor.” Consequently, the employees were not entitled

to strike, and the RLA was violated.

The language of the RLA does not explicitly address

whether damages are available to a party who has been

injured as a consequence of another party’s failure to

follow the provisions of the RLA. CSXT argues that the

RLA purposefully left to the courts the task of developing

the remedies for breach of duties imposed by the RLA on

unions and carriers.

Since the RLA is silent on the issue of damages, this

Court would have to infer a cause of action in order to

allow CSXT’s suit against BMWE to continue. It has con-

sistently been held that courts shall be allowed a large

degree of discretion in interpreting the RLA. For exam-

ple, courts routinely grant injunctions under the RLA,

20a

even though the language of the Act does not specify

injunctive relief. See Consolidated Rail Corp. v. Railway

Labor Executives Ass’n, 109 S.Ct. 2477 (1989).

Yet, only one court has seemingly allowed damages

in favor of a carrier due to a violation of the RLA. Denver

& Rio Grande Western R.R. v. Brotherhood of R.R. Trainmen,

58 L.R.R.M. (BNA) 2568 (D.Colo. 1965), rev'd on other

grounds, 367 F.2d 137 (10th Cir. 1966), rev'd, 387 U.S. 556

(1967). In this case, a district court awarded damages

against a union for injuries that resulted from a strike.

The district court’s holding was reversed by the ‘Tenth

Circuit Court of Appeals, based on venue. On appeal, the

United States Supreme Court discussed the damage

award, but only in regard to the factual background of

the case. The Supreme Court reversed the court of

appeals on the venue issue and remanded the case to the

district court, whose final decision did not discuss the

theory upon which liability was based.

The Fifth Circuit Court of Appeals has specifically

addressed this issue and held that no right to recover

damages exists under the RLA. Louisville and N.R.R. Co. v.

Brown, 252 F.2d 149 (5th Cir. 1958). In Brown the court

refused to imply a damages remedy based in tort directly

from the RLA.

Although CSXT criticizes the Court’s reasoning in

Brown, courts have followed its holding. National Airlines,

Inc. v. Airline Pilots, 431 F.Supp. 53 (S.D. Fla. 1976). The

court held that Brown was still valid precedent, and it

denied an award of damages to a carrier for an invalid

strike. The court reasoned that, because Congress had not

taken any action that contradicted the result in Brown,

2la

Congress must have intended this result. Id. at 54. The

National Airlines court also rested its findings on the often

stated proposition that allowing a carrier to seek damages

from a union would be giving carriers a weapon which

they could use to keep unions “in line” and therefore

upset the balance of power. Id.

Recently, in Burlington Northern R.R. Co. v. Brother-

hood of Maintenance of Way Employees, et al., No. 4-90-463-

A (March 7, 1991), the United States District court for the

Northern District of Texas dismissed the railroad’s claim

for incidental and consequential damages resulting from

an apparently invalid strike. The facts, procedural pos-

ture, and issues presented in Burlington Northern are

indistinguishable from the case at bar.

While CSXT makes some very valid arguments, sup-

ported by the legislative history and fairness concerns, in

favor of allowing damages, this Court is not in a position

to allow such relief. In the long history of the RLA, no

court has explicitly allowed recovery of money damages

in this type of situation. The absence of such case author-

ity, combined with the failure of Congress to intervene

and affirmatively approve such remedies, requires this

Court to dismiss CSXT’s claims.

On this 3rd day of May, 1991.

/s/ Karl S. Forester

KARL S. FORESTER, JUDGE